1 Hess sees overlaps between the exceptions in Art 19(1)(b) and (c) since the assets made available will as a rule be connected with the claim in the action—if only because of the explicitly intended satisfaction of the claim in the action. Hess, ‘ILC’s Draft on Jurisdictional Immunities of States and their Property’ (1993) 4 EJIL 269 at 277 n 72.
2 AIG Capital Partners Inc & Anr v Kazakhstan [2006] 1 WLR 142.
3 Orascom Telecom Holding SAE v Republic of Chad & Ors [2008] 2 Lloyd’s Rep 396.
4 YBILC (1995) I, 283, para 30 Mr Razafindralambo.
5 (1879–90) 5 Prob Div 197 at 217.
6 The Schooner Exchange v McFaddon 11 US 116 (1812); (1812) Cranch 116: ‘a public vessel belonging to a sovereign, and employed in the public service’; The Prins Frederick, 2 Dods 451 and Briggs v The Lightships, 11 Allen, Mass 157: ‘these light boats were not intended for military service … Immunity … arises, not because they are instruments of war, but because they are instruments of sovereignty’.
7 Diplomatic property was separately treated in the US Act; see text at Chapter 13: Exception for immovable property.
8 The ILC Drafting Committee also added the conditions that the property be located in the territory of another State, and property forming part of the cultural heritage or of an exhibition should not be for sale, ie extra commercium.
9 Al-Adsani v UK ECHR App No 35753/97, Judgment of 21 November 2001, 27; cf the English case AIG Capital Partners Inc and Anr v Kazakhstan [2005] EWHC 2239 (Comm); [2006] 1 All ER (Comm) 1.
10 See NML v Argentina, Cour de Cassation, Judgments No 394, 395 and 396 of 28 March 2013 declaring that given that, ‘according to customary international law, as reflected by the UN Convention of 2 December 2004 on the Jurisdictional Immunities of States and their Property, whilst States can renounce, by written contract, their immunity from execution against assets or categories of assets used or destined to be used for public purposes, they can only do so in an express and specific manner, mentioning the assets or the category of assets over which the renunciation is granted’.
11 Bynkershoek, De Foro Legatorum (1721), Ch VIII; Denza, Diplomatic Law (3rd edn, 2008).
12 Legation Building (Execution) case, Sup Ct, Austria, 15 March 1921, 1 ILR 219; Immunity of Immovable Properties of the Embassy of Hungary, 1929, 4 ILR 371; Kenyan Diplomatic Residence Case, German Federal Sup Ct, 23 May 2003, 128 ILR 632.
13 SIA, s 16(1); Australian SIA, s 32(3)(a). The VCDR also provides a general immunity from execution of the diplomatic agent; Art 31(3) further provides that no measures of execution may be taken in respect of a diplomatic agent save in respect of the three exceptions to immunity in Art 31(1) and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence. See Ch 18 on diplomatic immunities.
14 Kenyan Diplomatic Residence Case, German Federal Sup Ct, 23 May 2003, 128 ILR 636.
15 Denza, Diplomatic Law, 20–2.
16 Sedelmayer v Russian Federation, Sweden Sup Ct, 1 July 2011 Pal Wrange (2012) 106 AJIL 347.
17 767 Third Avenue Associates v Permanent Mission of the Republic of Zaire 805 F.Supp.701 (2nd Cir 1992); 99 ILR 195 (unpaid rent); SS Machinery Co v Masinexportimport 802 F.Supp.1109 (1992); 107 ILR 239 (consular premises).
18 Bennett v Islamic Republic of Iran (DC Cir) 10 September 2010 5 ILM. Claim for attachment relating to Iranian diplomatic property currently held by the US under the Terrorism Risk Insurance Act (TRIA), which permits the attachment of blocked assets of State sponsors of terrorism to satisfy judgment for compensatory damages for acts of terrorism property ‘including diplomatic premises, unless being used exclusively for diplomatic or consular purposes’. The Claimant alleged the US periodically rented one of the properties to third parties for non-diplomatic use. The court concluded that the plain reading of TRIA only requires that the court look at ‘the purpose for which the property is used, and not the way the property is used in service of that end’. As a result, the court reasoned, since the US government used the rent proceeds solely to maintain and repair the properties, thus ‘facilitat[ing] compliance with its treaty obligations under the Vienna Convention, the properties are not subject to attachment under TRIA’.
19 Statement of the White House Press Secretary, 21 October 1998. Other reasons given by the US administration for its exercise of the presidential waiver were: that it would benefit one small group of Americans, judgment creditors, at the expense of many US citizens who went uncompensated for State wrongs; that it would breach the long-standing principle of its own immunity as the US government from execution; that it would ignore the separate legal status of States and their agencies and instrumentalities, and finally, by attaching diplomatic property as a matter of ordinary judicial process, it would deprive the US of a policy instrument of such a sanction against a State in violation of its international obligations, Treasury Deputy Secretary Stuart E Eizenstat to the Senate Judiciary Committee, 27 October 1999, cited in (2000) 94 AJIL 123.
20 Under US law they are available for attachment as property of the State ‘used for a commercial activity upon which the claim was based’ (FSIA, s 1610(1)(a)) or under the more extensive UK law as ‘in use or intended use for commercial purposes’ (SIA, s 13(4)).
21 VCDR Official Records II, 20, 57; van Houtte argues that the prohibition against execution does not apply to funds deposited in banks and that the travaux préparatoires show the intention was plainly not to extend the prohibition to property ‘not located in the embassy’, van Houtte, ‘Towards an Attachment of Embassy Bank Accounts’ (1986) Belg RDI 70. See also Crawford (1981) 75 AJIL 70.
22 Salmon, Manuel de droit diplomatique (2nd edn, 1994), 202–6 arguing that one might find the documents relating to title of the bank account within the embassy premises rather than elsewhere.
23 Salmon also notes that the Vienna Convention on Consular Relations 1964, Art 31(3) refers specifically to the ‘property of the consular post’ as ‘being immune from any form of requisition for purposes of national defence or public utility’ and argues that if consular property is immune a fortiori so should be that of the diplomatic mission; but arguably the VCDR, Art 31(3) is not in point as it refers solely to public requisition. On the other hand, the 1969 Convention on Special Missions, Art 25(3) refers to ‘other property serving the operation of the mission’ which would surely cover bank accounts of such missions.
24 46 BverfGE 342; 65 ILR 146; UN Legal Materials, 297, 13 December 1977.
25 Republic of ‘A’ Embassy Account case, Austrian Sup Ct, 3 April 1986, 77 ILR 489; Leasing West Gulf v People’s Democratic Republic of Algeria, Austrian Sup Ct, 30 April 1986, 116 ILR 527.
26 Alcom v Republic of Colombia [1984] AC 580, 74 ILR 170. See Ch 9; the UK SIA, for a further account of the case.
27 Netherlands v Azeta BV, District Court of Rotterdam, 14 May 1998, 128 ILR 688. See also Maite GZ v Consulad General de Francia, Spain Const Trib [1997] Aranzadi No 176, BOE, 19 October 2001, No 251 (suppl).
28 Dumez v Iraq, French Cour de Cassation, 15 July 1999, 27 ILR 144; Clunet (2000) 45.
29 Leica AG v Central Bank of Iraq, 15 February 2000, Brussels Ct of Appeal, J des trib (2001) 6; Iraq v Vinci Constructions, 4 October 2002, Brussels Ct of Appeal, J des trib (2003) 318, 127 ILR 101. Further confirmed in Burundi v Landau, Belgium Ct of Appeal, Brussels, 21 June 2002, 127 ILR 98.
30 Birch Shipping Corpn v Embassy of the United Arab Republic of Tanzania 507 F.Supp.311 (DD Cir 1980), 63 ILR 527.
31 Liberian Eastern Timber Co v The Government of the Republic of Liberia 659 F.Supp.606 (DDC 1987), 89 ILR 360. See also Foxworth v Permanent Mission of the Republic of Uganda to the UN 796 F.Supp.761 (SDNY 1992), 99 ILR 139.
32 In State Marine Corpn and Currence v USA, Spain Provincial Ct of Cadiz, 25 June 1999, 128 ILR 701 goods being transported by ship for the military activities of US troops held immune from attachment in respect of unpaid freight on the charter agreement; it made no difference to the immunity that ‘the consignment in question included food items since food was necessary for the victualling of troops’.
33 The House Report lists military equipment (weapons, ammunition, military transport, warships, tanks, communications equipment) under category (a) but stresses that both the character and the function of the property must be military. The second category, the House Report continues, is intended to protect food, clothing, fuel, and office equipment: House Report, 31. Cf a similar definition of military property in s 3(10) of the Australian FSIA.
34 Although it appears that exemption from health regulations and tax requirements are on occasion enjoyed by such forces. On a parliamentary question re preferential treatment of beef imports for US visiting forces, see (1988) 59 BYIL 59 UK MIL 484 and (1989) 60 UK MIL 626.
35 Behring International Inc v Imperial Iranian Air Force 475 F.Supp.383 (DNJ 1979); 63 ILR 261.
36 The Convention, however, proved highly technical; although some of the difficulties arising from shared ownership and use of vessels by government and private parties were addressed in the Additional Protocol of 1934, the Convention has not gained wide support: the US is not a party, and the UK only ratified after the enactment of the SIA.
37 Wijsmuller Salvage BV v ADM Naval Services, District Ct of Amsterdam, 19 November 1987 (1989) 16 NYIL 294.
38 (1985) 56 BYIL 462–7. The crewmen argued that Spain was not a party to the 1926 Brussels Convention and that exemption from salvage in Spanish law was only available to Spanish warships. Under an arbitration held in London in 1984 the owner, master, and crew were awarded £412,000.
39 There have been incidents when a State aircraft carrying a VIP has been under threat of attachment in respect of unpaid debts of the State.
40 YBILC (1990) II, pt 2, para 219.
41 YBILC (1990) II, pt 2, 42, para 227.
42 Blair, ‘The Legal Status of Central Bank Investments under English Law’ (1998) 57 Camb LJ 378.
43 Lijiang Zhu, ‘State Immunity from Measures of Constraint for the Property of Foreign Central Banks: The Chinese Perspective’ (2007) 16 Chinese J Int Law 67 at 79.
44 AIG Capital Partners Inc and Anr v Kazakhstan (National Bank of Kazakhstan intervening) [2005] EWHC 2239 (Comm), [2006] 1 WLR 1420, [2006] 1 All ER (Comm) 11, 129 ILR 589 at para 92.
45 Blair, ‘The Legal Status of Central Bank Investments under English Law’ (1998) 57 Camb LJ 389, 390, citing Bingham MR and Phillips LJ in Camdex International Ltd v Bank of Zambia (No 2) [1997] 1 All ER 728, January 1997.
46 Daneshkhu and Blitz, ‘UK Warns over Push for State Protection’, Financial Times (24 July 2007).
47 Kri Guha, ‘Warning over Sovereign Wealth Funds’, Financial Times (22 June 2007).
48 Republic of Kazakhstan, Federal Swiss Court, 8 December 2000. Henzelin, L’immunite pénale des chefs d’État en matière financière’ (2002) RSDIE 179 at 198.
49 SerVaas Inc v Rafidain Bank & Ors [2012] UKSC 40 Lord Phillips, Lady Hale, Lords Clarke, Sumption, and Reid.
50 Liberian Eastern Timber v Government of the Republic of Liberia 659 F.Supp.606 (DDC 1987) 650, 89 ILR 360.
51 Permanent Mission of India to the United Nations v New York (14 June 2007).
52 YBILC (1985) II, pt 1, 21, 7th Report, para 44.
53 Merryman, ‘Two Ways of Thinking about Cultural Property’ (1986) 80 AJIL831; George, ‘Using Customary International Law to Identify “Fetishistic” Claims to Cultural Property’ (2003) 80 NYULR 1207.
54 Note of the Direction du Droit International Public, Federal Dept of Foreign Affairs, 26 October 1984 (1985) 41 Schw J Il 178. Kiss and Shelton ‘Systems Analysis of International Law’ (1986) 17 NYIL 45 at 56.
55 Commentators have welcomed immunity for archives or art objects. Kessedjian and Schreuer, ‘Le Projet d’Articles de CDI sur les Immunités des États’, 299. Hess, ‘ILC’s Draft on Jurisdictional Immunities of States and their Property’, 278.
56 Attorney General of New Zealand v Ortiz [1983] 2 All ER 83.
57 The UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of 1970; the Unidroit Convention on Stolen or Illegally Exported Cultural Objects was signed in June 1995; EC Council Directive 93/7 on the Return of Cultural Objects Unlawfully Removed from the Territory of a Member State.
58 ADI 57-II (1977), 328; Collins (gen ed), Dicey, Morris and Collins, The Conflict of Laws (14th edn, 2006), para 5-040, n 80 (hereinafter Dicey).
59 Iran v The Barakat Galleries Ltd [2007] EWCA Civ 1374 (21 December 2007). Cf ‘Litigation concerning Iranian artifacts’ (2007) 41 The Int Lawyer 624 relating to US creditor claims against various museums seeking to attach Iranian antiquities on loan to satisfy outstanding judgments; the claimants argue that the museums act as agents for the State of Iran and the exhibition of the artefacts is a commercial activity and consequently not immune under the FSIA; alternatively following the seizure of the US embassy and personnel in Tehran in 1979 the antiquities in the US were declared blocked assets and can only be unblocked if the assets are shown to be the uncontested property of Iran.
60 (2004) 14 RSDIE 674; ‘$1bn of Seized Art to be Returned’ The Times (17 November 2005). An emergency court declaration relating to original bark exhibitions on exhibition in the Museum Victoria, Australia designed to prevent their return to Britain was subsequently discharged. ‘Aborigines Hijack Artifacts Loaned by Britain’ The Times (26 July 2004).
61 Adam II of Liechtenstein v Fed Republic of Germany 2 B v R 1981/97, Fed Const Ct, 28 January 1998. Prince Hans Adam II of Liechtenstein in his personal capacity applied to the ECHR in respect of violation of Arts 5(1) and 14 and Protocol Art 31; Application 42527/98 declared admissible, 6 June 2002. Liechtenstein’s application for expropriation to the ICJ was dismissed for lack of jurisdiction: Case Concerning Certain Property Liechtenstein/Germany, ICJ Preliminary Objections, 10 February 2005.
62 22 USC s 2459 (1965).
63 Application is made to the US State Department by letter containing a list of objects to be exhibited, a statement of their cultural significance, and a copy of the loan agreement with the museum or other place where the objects will be exhibited. Recently inquiry as to the provenance of the objects may be made.
64 Rubin v Iran 349 F.Supp.2d 1108 (ND ILL 2004); Rubin v Iran 465 F.Supp.2d 228 (D Ct Mass). See No-2805 (7th Cir) 29 March 2011 where the appeal court reversed directing the lower court, even in the absence of the foreign State, to determine whether the presumption that State property is immune was supported on the evidence.
65 (2007) 41 Int Lawyer 625–56.
66 541 US 677 (2004). The dispute was subsequently submitted to an Austrian arbitration panel which ruled in favour of Altmann in 2006 with the Austrian government returning five of the paintings.
67 362 F.Supp.2d 298 (US DC 2005) the dispute being eventually settled amicably between the parties.
68 See the account of this seizure of Czech cultural objects on loan to the Belvedere in Vienna, in Nout van Woudenberg, State Immunity and Cultural Objects on Loan (2012), Ch 9, para 9.2.3.
69 528 F.3d 935 (DC Cir 2008).
70 Chabad v Russian Federation No 05-01548 (DDC 27 October 2009), aff’ing in part, rev’ing in part 466 F.Supp.2d 6 (DDC 2006). It was brought under 28 USC § 1605(a)(3) which waives foreign sovereign immunity in certain cases. See Bazyler and Gerber, ‘Litigating the Pillage of Cultural Property in American Courts: Chabad v Russian Federation and Lessons Learned’ (2010) 32 Loy LA Int’l & Comp L Rev 45–82.
71 An important Chinese exhibition planned by the British Museum for 2004 was cancelled after a major loan from Taiwan could not be secured because the lender could not be assured that the material would be protected from seizure while it was in the UK (Hansard Lords).
72 The 12-month period may be extended where damage sustained in the UK necessitates repair of the cultural object.
73 It is a condition of the government indemnity scheme, which provides insurance for works of art loaned to exhibitions in this country, that due diligence should have been carried out.
74 Criminal liability is also unaffected. Section 1 of the Dealing in Cultural Objects (Offences) Act 2003, which makes it an offence dishonestly to deal in a cultural object that is tainted, knowing or believing that it is tainted, continues to apply, as do the provisions for possession of criminal property in the Proceeds of Crime Act and the Theft Act.
75 Column 790.
76 For information on this legislation, proceedings in national courts relating to claims of cultural objects on loan, and views as to the customary force of their immunity, see van Woudenberg, State Immunity and Cultural Objects on Loan (2012).
77 NOGA v State of Russia; NOGA v Murmansk State Technical University and Association Brest 10 August 2000, Court of Appeal, Paris, 127 ILR 156. Gaillard, ‘The NOGA case and the Seizure of Sedov: Observations on the Validity of Enforcement Measures in France Against Russian Federation Property’ (2000) 2 Stockholm Rep 119.
78 Sedelmayer v Russian Federation, Sweden Sup Ct, 1 July 2011.
79 In its 1891 Hamburg Resolution.
80 ADI 1895–91, Art V. Rapporteur de Bar wished service of such notification and of other process to be made to the embassy of the foreign State located in the forum country but he was voted down, the majority preferring to rely on notification through diplomatic channels; Art IV stipulates that ‘adjournments whether in relation to heads of State or the State itself were to be made through diplomatic channels’.
81 Harvard Research on ‘Competence of Courts in regard to Foreign States’ (1932) 26 AJIL (suppl) 455, Art 25.
82 UNGA, A/C.6/47/L.10, Convention on Jurisdictional Immunities of States and their Property, Report of the Working Group, at 5, 12. Dellapenna, Suing Foreign Governments and their Corporations (2nd edn, 2003), s 10.4.
83 A/C.6/49/L.2 Calero-Rodrigues, 1994, para 11.
84 Although of the few States who ratified ECSI none signed up to the special tribunal established by a Protocol to the Convention the private litigant was also given a right:‘not to execute, but to seek a determination of the effect of the judgment in proceedings in a court of either the forum State or the foreign State’.
85 Council of Europe Rules adopted by the Committee of Ministers for the application of ECHR, Art 46.2, 736th meeting of 10 January 2001/4/2 App 5.